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12 Nov 2008

Delhi High Court set to rule on Section 377 as hearings conclude

Gay men and lesbians in India and around the world are eagerly awaiting the court's verdict after the recent conclusion of a 12-day hearing which began on May 19.

The Delhi high court last Friday completed hearing arguments in the case and had reserved its judgment on a petition to deciminalise private consensual sex between adults.

The seven-year-old petition is seeking to have Section 377 of the Indian Penal Code read down to exclude oral and anal sex between adults of any biological sex although the court hearings and media coverage tend to centre around sexual relations between adult men.

New Delhi-based gay rights activist and lawyer Aditya Bondyopadhyay explained in an email to Fridae that although Section 377, which criminalises "carnal intercourse against the order of nature with any man, woman or animal", is technically gender neutral and is equally applicable to heterosexual and homosexual sodomy, its use has been mainly to target gay sex between men.

The petition was filed in 2001 by Naz Foundation, a nongovernmental organisation working on HIV/AIDS and sexual health issues.

Gay activist and founder of NGO Humsafar afar, Ashok Row Kavi, clarified in a media report that the petition does not seek a repeal of Section 377 so that child sex offenses and male rape can continue to be prosecuted under the reinterpretation of the section, that would then exclude consensual sex between adults.

While rarely used in actual prosecutions today, the petition says that the almost 150-year-old law is used to target and harass lesbian, gay, bisexual and transgendered people, as well as HIV/AIDS activists and NGO workers. The law is also abused by the police to extort money and to blackmail gay men. The section, which dates back to 1860, provides for life imprisonment, a term exceeding 10 years and a fine.

It is the first time an Indian court will deliver a verdict for the section. Similar laws have been struck down since the 1980s in the US, UK, Australia, South Africa and the US. As with India, the former British Asian colonies of Bangladesh, Brunei, Malaysia, Myanmar, Pakistan, and Singapore continue to criminalise same sex relations under provisions similar to Section 377 present in each country's penal code. Hong Kong repealed the section in 1991.

A bench headed by the chief justice of the Delhi high court, A.P. Shah, has asked the petitioners and the respondents to file transcripts of their oral arguments by Nov 17.

When court proceedings began in May, the Union health ministry and the ministry of home affairs, which are respondents to the petition, were divided on the petition with the former supporting decriminalising same-sex sexual relations and the latter against it.

The National AIDS Control Organisation which is under the purview of the health ministry, told the court through an affidavit filed in July 2006 that section 377 of the IPC "can adversely contribute to pushing the infection (HIV/AIDS) underground", besides making "risky sexual practices go unnoticed and unaddressed".

During the proceedings, additional solicitor general P.P. Malhotra who represents the Union government argued on various grounds to keep to the status quo. He argued against reading down Section 377 citing "public morality and decency" to warning of an "increase the chances of evil... i.e. the evil of HIV/AIDS."

Observers and gay activists have noted the judges as being fair and non-prejudiced as evidenced by the courts frequently demanding data and studies to support claims made by the additional solicitor general.

When told that decriminalising same-sex relations would further spread HIV/AIDS, the Hindustan Times quoted Chief Justice Shah as saying: "Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV.

"If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease."

Last Thursday, advocate HV Sharma appearing for BJP leader B P Singhal argued that gay sex acts cause injuries to private parts of the people who "indulge" in gay sex and that it should not be allowed even between consenting adults.

The court responded: "In several countries where ban has been lifted (from gay sex), no one has claimed that the act is injurious. Even WHO does not say that it causes injuries to people involved in such acts. Do you have any material to substantiate the claim that indulgence in such acts causes injury to people's body?"

Sharma said no material is available as no such study has been done in the country.

To which the court retorted: "Human beings are same everywhere."

Gay activists in India say they are optimistic about getting a positive verdict given the judges' approach to the unscientific claims and anti-gay rhetoric made by the additional solicitor general in court.

Bondyopadhyay told Fridae: "While it would not be proper to speculate which way the judgement will go, I can say for sure that the reaction of the judges thus far have been positive, scientific, non-prejudiced, and strictly in line with what enforcement of fundamental rights demand. When this is contrasted with the near circus that the government lawyer (ASG PP Malhotra) and the counsel for Joint Action Council Kannur also known as JACK (a group that intervened in the petition) put up, the positivity of the court becomes even more stark. This gives us reasons for hope and optimism."

Vikram Doctor, a journalist and gay activist, whom Fridae asked about the case said he is hopeful given that the presiding judges are "probably the two most strongly human rights oriented judges" in the country. "And the way the hearings have proceeded - along with the ridiculous or malign arguments from the opposition - is making us cautiously optimistic of a favourable verdict."

But no matter what the verdict, both activists pointed at having won over the media as evidenced by the generally positive and close coverage of the court hearings.

Bondyopadhyay added: "The case in its course of eight years has itself been of enormous help to the LGBT rights movement in India. We have been able to mobilise, organise and unify at every turn and adversity that the case threw up. One of the most important successes has been the turning of the media, where all major media houses have now taken an editorial position against the continuation of 377."

The judges have not set a date to give the verdict.

Transcripts of court hearings are available on Alternative Law Forum.



1. 2008-11-12 18:28  
Let's go, India!Give the example, and let a true domino effect of begin. The victorian legacy is going to be trashed.
let's hope it works better than the mentioned "democracy domino effect" -___-
2. 2008-11-12 19:50  
Sounds cautiously hopeful, so fingers crossed for good news and an end to AIDS workers being slung in jail for daring to treat MSMs . Good luck to the selfless, tireless and devoted people at NAZ who have been working towards this moment for so long.
4. 2008-11-13 00:48  
"BrownHard says (Posted : 12 November 2008 22:48) :

Look at ..."

So much for social awareness.

But thanks for the intro to Hossan Leong, he seems very talented.
5. 2008-11-13 12:52  
This fight is proving very hard in what is supposed to be the "world's largest democracy". Imagine how much more difficult it can be in authoritarian and theocratic countries. Fortunately the Indian judges have proved to be very sensible in this case; they are a credit to India.

What really stands out in this Indian story is that not only are the Indian government officials appallingly ill-informed, but they also deliberately choose to remain so. They refuse to honour their duty to inform themselves correctly on the cases they contest. They are a disgrace to the positions they hold: ill-informed louts living like parasites off public funds and using their positions against the very people who pay to keep them there.

The Hindu philosophy and religion, the majority faith in India, has nothing negative to say about gay relationships, unlike with Christianity and Islam. In fact, sexuality of many different kinds are overtly recognised and talked about in ancient Indian literature and arts.

Interestingly, the Hindu philosophy, somewhat like Chinese Yin-Yang, also believes that the male and female aspects are closely intertwined and complementary, and both these aspects can be even found within the same individual. This is depicted in one of the deities worshipped in Hinduism: "Ardhanariswara", literally meaning "half-woman God", a form in which the God is physically shown as half man and half woman. Important Hindu works contain stories of eunuchs like Sikhandin who plays a key role in a major work called "Mahabharata"; a male God taking a female form to destroy a demon, like for example Mohini; a male God (Hari) who takes female form and unites with another male God (Hara) to produce a child (Ayyappa, also known as HariHaran) that would then destroy a demon, and so on. The temple carvings in Khajuraho in central India go into astounding graphic detail in their sexual depictions.

However, for some reason, the Hindu society has chosen to remain "conservative" -- a convenient term for "ignorant" and "backward" -- and prefers to label the gay nature as a "filthy western import". What these government officials have been saying and doing in this case actually reflects very accurately the way in which a majority of the straight Indian public views gays. In that sense we do need to take these irresponsible statements and actions very seriously, and look for ways in which to reach out to Indians and educate them.

This is by no means an easy task. For one thing, there is no sex education in Indian schools. A few state governments made some tentative experiments in this, and failed badly. The books were produced poorly, and focussed on the sexual act alone rather than on looking at sexuality as a whole. Teachers refused to teach from them, and male students used the crude illustrations of genitals to make fun of mortified girls.

Indian parents almost never discuss sex with children at any age. Whatever Indian children learn is from peers and strangers, and these days, online. The average Indian therefore understands no difference between gays, transgenders, cross dressers and eunuchs. These all represent the same "dirty thing" that "rapes babies and animals". Look at ANY Indian anti-gay post, and you will find "animal sex" and "pedophilia" mentioned.

The irony here is that, when it comes to rape of the female sex by straight men, India is practically the rape capital of the world. Opportunity makes the rapist in India. No female is spared across the length and breadth of India, whether small child or elderly woman. Tourists are not spared either, and the straight rapists don't care that this shames the entire nation. And yet, one of the most used arguments by this hypocritical Indian straight male against gay people is that legalising gay relationships "would lead to moral decline in Indian society". As if morals in India could get any lower than it is already.
7. 2008-11-13 19:35  
"It has always been a mystery to me how men can feel themselves honored by the humiliation of their fellow-beings."
8. 2008-11-14 03:41  
My post No. 5 was prompted by brownHard's two posts, now removed, but is generally applicable in any event.
9. 2008-11-14 17:50  
I think if every body wrote a letter to this guy how you feel it could change is mind you never know!

what I do know is that he's not going to be reading your comments on here, and its a real shame how so many country and there power off authority live in the dinisores days
10. 2008-11-14 22:01  
I'm...crossing my fingers hoping the court rules in favor of repealing 377.

It'll be the basis to repeal the law in all former English colonies, including Malaysia. Though we do have the pesky Sharia and Muslim community screaming and barging in at all forums on equality.

Seksualiti Merdeka was not affected though. :)
11. 2008-11-16 14:39  
It is good to hear that the judge is critical of the emotive and unsubstantiated claims made by the religious zealots. The judge is seeking to bring the truth out and deal only with facts and that being the case I am confident that the anti-gay lobby will not be able to prove the case that they are trying to promote. I agree with other writers that if India can see the light and repeal 377 then this will bring pressure on the other backward governments in the region to repeal their own versions of 377.
14. 2008-12-01 15:56  
Here's an interesting article that appeared in todays online "Times of India". I thought it would be relevant because one of the main objections to gay rights in India was that it would "destroy moral fabric" or something equally specious.

The article is about an issue I've written on earlier too; about the huge numbers of rapes committed by Indian heterosexuals: the same hypocrites that brand gay people as immoral. Many of the rapists are close family relatives too; the ones who attack gay people for "destroying family values". Not even old women are spared from being raped!
We must also remember that in many cases the rapes are not reported, for fear of violence, shame, ostracism, dependence, poverty, etc. So, the actual numbers could be much higher.

Two women raped in India every hour
1 Dec 2008, 1220 hrs IST, PTI (The Times of India)

NEW DELHI: Every 60 minutes, two women are raped in this country.

What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB).

A total of 20,737 cases of rape were reported last year registering a 7.2% increase over the previous year, with Madhya Pradesh becoming the "rape capital" of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour.

Madhya Pradesh (3,010) accounted for 14.5 per cent of the total cases, with West Bengal following with 2,106 such incidents. Records of high incidence in other states are Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238).

The national capital had 598 cases in which 602 women were sexually assaulted.

In its report 'Crime in India - 2007', the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent) that included 6,902 incidents in which neighbours were involved.

Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. "Everywhere in this country, over 90 per cent of the victims are raped by person known to them," a senior police official said.

Women in the age-group of 18 to 30 years were the largest chunk among the victims (11,984) followed by 3,530 victims in the age-group of 30-50 years.

While 617 victims were below the age of 10 years, 4,507 were between 10 and 18 years, the report said.





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